UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cassandra Lee Carr

v. Case No. 14-cv-437-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, U.S. Social Security Administration

MEMORANDUM AND ORDER

Cassandra Lee Carr challenges the Social Security

Administration’s denial of her claims for disability insurance

benefits (“DIB”) and supplemental Social Security income (“SSI”).

The Social Security Commissioner, in turn, seeks to have the ruling

affirmed.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 10).

See LR 9.1. Because that joint statement is part of the court’s

record, I need not recount it here. I discuss facts relevant to

the disposition of this matter as necessary below. II. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the pleadings submitted by the parties and the

administrative record, and to enter a judgment affirming,

modifying, or reversing the “final decision” of the

Commissioner. That review is limited, however, “to determining

whether the [Administrative Law Judge] used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the Administrative Law Judge’s (ALJ’s)

findings of fact, so long as those findings are supported by

substantial evidence.

Substantial evidence exists “‘if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.’”

Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater,

(1st

2 Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

III. ANALYSIS

Carr filed an application for DIB and SSI in August 2012,

alleging disability as of January 31, 2011. Tr. at 165-82.

After her claims were initially denied, a hearing was held

before an ALJ in May 2013.1 Tr. at 36-82 (hearing transcript).

The ALJ issued a written decision in June 2013 concluding that

Carr was not disabled. Tr. at 16-35. In his decision, the ALJ

concluded at step one that Carr had not engaged in substantial

gainful activity since January 31, 2011, the alleged onset date.

Tr. at 21. At step two, the ALJ determined that Carr had severe

impairments of depression, panic disorder, and reading disorder.

Tr. at 21-22. At step three, the ALJ decided that Carr’s

impairments did not meet or equal any of the listed impairments,

specifically considering and rejecting listing 12.05. Tr. at

1 In the parties’ joint statement of material facts, they state that the hearing took place on December 10, 2010. Doc. No. 10 at 1. According to the record, as cited by the parties, however, the hearing occurred on May 29, 2013. Tr. at 36.

3 22-24. The ALJ finally found at step five that Carr had the

residual functional capacity to perform work in the national

economy. Tr. at 24-29. The ALJ therefore concluded that Carr

was not disabled. Tr. at 30.

In August 2014, the Appeals Council notified Carr that it

had denied her request to review the ALJ’s decision. Tr. at 1-

6. As such, the ALJ’s decision constitutes the Commissioner’s

final decision, and this matter is now ripe for judicial review.

Carr argues that a remand is required for two reasons: (1)

the ALJ erred in concluding that Carr did not meet or equal

listing 12.05(C), and (2) the ALJ’s assessment of Carr’s

residual functional capacity is not supported by substantial

evidence. Doc. No. 8-1. I address each argument in turn.

A. Listing 12.05(C)

Carr first challenges the ALJ’s conclusion that Carr did

not meet or equal listing 12.05(C). See id. at 4-13. For the

reasons set out below, I reject Carr’s argument.

(a)(4)(iii) provides that, at step

three of the five-part evaluation process, the ALJ must consider

the severity of a claimant’s impairments to determine whether

those impairments meet or equal one of the listings set out in

appendix 1 of

. Each listing then specifies the

“objective medical and other findings needed to satisfy the

4 criteria of that listing.”

(c)(3). In

order to meet a listing’s requirements, the impairment(s) must

“satisf[y] all of the criteria of that listing, including any

relevant criteria in the introduction . . . .”

Thus, to meet listing 12.05(C), a claimant’s impairments

must satisfy (1) the requirements set out in listing 12.05’s

introductory paragraph, and (2) subparagraph 12.05(C)’s

particular criteria. Libby v. Astrue,

(1st Cir. 2012); Stanley v. Colvin,

, at *16 (D.

Mass. March 28, 2014). Listing 12.05’s introductory paragraph

provides that a claimant must suffer “deficits in adaptive

functioning [that] initially manifested . . . before age 22.”

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Subparagraph

12.05(C) further requires that the claimant demonstrate “[a]

valid verbal, performance, or full scale IQ of 60 through 70,”

and “a physical or other mental impairment imposing an

additional and significant work-related limitation of function.”

Id. at 12.05(C). The absence of one or more of these

requirements means that the claimant’s impairments do not meet

listing 12.05(C). See Libby,

. The claimant

bears the burden of proving that her impairments meet or equal

the listing. See Dudley v. Sec’y Health & Human Servs.,

(1st Cir. 1987).

5 Here, the sole disputed issue is whether the ALJ’s finding

that Carr lacked the necessary deficits in adaptive functioning,

as required by listing 12.05’s introductory paragraph, is

supported by substantial evidence.2 See Tr. at 23.

, Subpt. P, App. 1, 12.00(C)(1) provides examples of

“adaptive activities,” which include “cleaning, shopping,

cooking, taking public transportation, paying bills, maintaining

a residence, caring appropriately for your grooming and hygiene,

using telephones and directories, and using a post office,” and

explains that these activities are assessed “by their

independence, appropriateness, effectiveness, and

sustainability.” See Stanley,

, at *16. To

evaluate whether a claimant suffers “adaptive deficits,” then,

the ALJ must “determine the extent to which [the claimant is]

2 In her motion, the Commissioner concedes that the ALJ erred by rejecting Carr’s assessed full scale IQ score of 69. See Doc. No. 9-1 at 3-4. The Commissioner further admits that the ALJ’s finding that Carr had severe depression, panic disorder, and reading disorder meets listing 12.05(C)’s requirement that Carr suffer “a physical or other mental impairment imposing an additional and significant work-related limitation . . . .” Id. at 4. The Commissioner thus concedes that Carr met the requirements set out in subparagraph 12.05(C). See id. The Commissioner nonetheless argues that I should affirm the ALJ because the ALJ properly concluded that Carr lacked the adaptive deficits required by listing 12.05’s introductory paragraph. Id. Carr apparently agrees that, for her impairments to meet listing 12.05(C), she must suffer adaptive deficits. See Doc. No. 8-1 at 7-12 (arguing that Carr did, in fact, suffer adaptive deficits). 6 capable of initiating and participating in activities

independent of supervision or direction.”

,

Subpt. P, App. 1, 12.00(C)(1).

In this case, substantial evidence supports the ALJ’s

determination that Carr did not suffer the requisite adaptive

deficits. In addressing Carr’s adaptive functioning, the ALJ

noted that Carr has a driver’s license, drives to medical

appointments and to visit family, and performs household tasks

for her elderly grandmother. Tr. at 23; 240-42. The ALJ

further noted that Carr has been living independently since age

sixteen, and can adequately and independently perform self-care

and grooming activities, prepare meals, shop in some stores, and

manage money. Tr. at 22-23; 50-51 (when asked whether she

needed help to pay bills and complete similar tasks when living

alone, Carr responded that she “pretty much did it myself”); 241

(Carr stating that “[e]very day I make my own meals”); 341. The

ALJ further noted that the medical evidence suggested that Carr

did not require support or training in self-management skills.

Tr. at 22; see, e.g., Tr. at 341 (Dr. Thomas Burns concluding

that “Carr is able to handle all her self care needs

effectively. She is able to perform household tasks, manage her

daily activities, and complete most routine financial

interactions effectively.”). Thus, there is substantial record

7 evidence to support the ALJ’s determination that Carr lacked the

requisite adaptive deficits.

Carr contends, however, that the ALJ erred by allegedly

failing to “look further into [Carr’s] independence or

effectiveness” in performing the above-described activities.

Doc. No. 8-1 at 8. Relying largely upon her own testimony, Carr

notes that she often depends upon her boyfriend and family; is

nervous taking medication alone; drives only short distances;

left school after eighth grade and was unable to complete her

GED; sometimes struggles to make correct change; and is anxious

in many social situations. Id. at 8-12. Therefore, she argues,

she cannot complete adaptive tasks “independently” or

“effectively,” and thus has the necessary functional deficits.

This argument is unpersuasive for two reasons. First, ample

medical and testimonial evidence contradicts Carr’s suggestion

that she cannot perform these adaptive tasks independently or

effectively. See, e.g., Tr. at 50-51; 341. Second, and more

fundamentally, the fact that Carr has identified materials that

could support a different conclusion does not warrant reversing

the ALJ’s decision where, as here, the ALJ based his conclusion

on substantial evidence. Instead, “a court must affirm the

Commissioner’s decision so long as it is supported by

substantial evidence, even if the record could arguably justify

8 a different result.” Young v. Astrue,

, 23 n.18;

see Irlanda Ortiz,

. I therefore reject Carr’s

argument that the ALJ erred in concluding that Carr did not meet

or equal listing 12.05(C), and instead affirm the ALJ’s

determination. See Libby v. Astrue,

, at *12 (D.

Me. July 11, 2011) aff’d Libby v. Astrue,

(1st

Cir. 2012) (affirming the ALJ’s decision that the claimant

failed to meet listing 12.05(C) under facts similar to those

presented here); see also Arce v. Barnhart,

(5th Cir. 2006); Geier v. Astrue,

, at *4

(N.D. Fla. Feb. 28, 2008).

B. Carr’s Residual Functional Capacity

Carr next contends that the ALJ erred in assessing Carr’s

residual functional capacity. A claimant’s residual functional

capacity, or “RFC,” is “the most [the claimant] can still do

despite [her] limitations.”

(a)(1),

416.945(a)(1). The ALJ must assess a claimant’s RFC “based on

all of the relevant medical and other evidence.” See

(a)(3), 416.945(a)(3). On appeal, I review whether

the assigned RFC is supported by substantial evidence. Irlanda

Ortiz,

.

In this case, the ALJ found that Carr had the RFC “to

perform medium work as defined in 20 CFR 404.1567(c) and

9 416.967(c) except she is limited to occasionally balancing,

[stooping], kneeling, crouching, and crawling; she must avoid

concentrated exposure to moving machinery, hazardous machinery,

and unprotected heights; work is limited to 1 to 2 step tasks

with no detailed instructions; lastly, she is limited to only

occasional interaction with the public.” Tr. at 24-25. Here,

Carr argues that the assigned limitation on social interaction –

“only occasional interaction with the public” - is not supported

by substantial evidence. Carr specifically asserts that medical

experts unanimously called for limiting Carr to only occasional

interaction with “others,” including co-workers, and not merely

“the public.” Doc. No. 8-1 at 13. She contends, therefore,

that the ALJ erred by allegedly substituting his own lay views

for uncontroverted medical opinion. Below, I review the medical

and other evidence relevant to Carr’s assessed limitation, and

ultimately conclude that the ALJ erred in assigning Carr’s RFC.

1. Dr. Burns

Carr underwent a psychological examination with

consultative examiner Thomas Burns, Ph.D., in October 2012. Tr.

at 339-43. Upon mental status examination, Dr. Burns reported

that Carr “seemed slightly anxious,” but that her speech was

“clear, logical, [and] appropriate,” her thoughts “seemed

logical, and focused on the business at hand,” and her

10 “[i]ntelligence seemed in the average range.” Tr. at 340. Carr

reportedly told Dr. Burns that she knew her “neighbors and the

landlord and gets along well with everybody.”

Dr. Burns

opined that Carr “appears to have good social skills” and “seems

able to interact with very small numbers of people effectively.”

Tr. at 341. Dr. Burns further noted, however, that Carr

“reports considerable discomfort and anxiety when she is in

situations where there are more than perhaps 10 people” and

“becomes very anxious and flees” circumstances in which “she has

to deal with more than a very few people or with social

conflict.” Tr. at 341-42. Dr. Burns thus stated that, “[a]s

long as she is essentially working alone, [Carr] appears to do

reasonably well.” Tr. at 342. Dr. Burns then concluded that,

although Carr’s anxiety has caused her to withdraw from

vocational situations, her “disorder would seem treatable.” Tr.

at 343.

In assigning Carr’s RFC, the ALJ reportedly considered Dr.

Burns’ opinions and findings, but gave them “only some weight.”

Tr. at 26. With respect to social limitations in particular,

the ALJ stated that he found Dr. Burns’ assessments “that [Carr]

should be limited to work where she is essentially working

alone, not supported by the medical evidence of record.” Tr. at

26. To bolster this conclusion, the ALJ cited Carr’s “own

11 reports that she is able to adequately interact with smaller

groups and [her] prior work history which shows that she has

been able to interact with co-workers.” Tr. at 26-27. The ALJ

therefore decided that any further limitation on Carr’s

interaction was unnecessary and “simply not supported by the

medical evidence of record.” Tr. at 26-27.

2. Dr. Stenslie

In October 2012, state psychologist Craig Stenslie, Ph.D.,

reviewed the record, including Dr. Burns’ findings and opinions.

See Tr. at 83-102. Upon his review, Dr. Stenslie opined that

Carr “is able to deal adequately with all instructions, maintain

attention for extended periods, sustain an ordinary routine,

complete a normal work day and week, and cope with stress and

change.” Tr. at 89-90, 99-100. Dr. Stenslie concluded,

however, that Carr “is able to work in coordination with others

only if such work is a minimal part of her job description.”

Tr. at 90, 100.

In assigning Carr’s RFC, the ALJ considered Dr. Stenslie’s

opinions, “but . . . granted them only some weight.” Tr. at 28.

With respect to Carr’s social limitations, the ALJ found that

Carr’s “ability to interact appropriately with medical providers

and consultative examiners and her ability to interact in small

social settings also demonstrates that [she] is not

12 significantly precluded from all social interaction in a work

setting.” Tr. at 28. The ALJ further stated that Carr’s “prior

work history shows that she was able to interact with co-workers

with little to no difficulty.” Tr. at 28. The ALJ therefore

concluded that, although Carr should be limited to only

occasional interaction with the public, “any additional social

restrictions would be inconsistent with the medical evidence of

record, [Carr’s] activities of daily living, and her overall

social functioning.” Tr. at 28.

3. Dr. Wagner

Lastly, in May 2013, Carr underwent a psychological

evaluation with clinical psychologist Jeffrey Wagner, Ph.D., at

her attorney’s suggestion. See Tr. at 495-504. When asked why

she was unable to work, Carr told Dr. Wagner that she became too

dizzy and anxious. Tr. at 495. Dr. Wagner diagnosed Carr with

mild mental retardation, major depression, panic disorder with

agoraphobia, social anxiety disorder, and generalized anxiety

disorder. Tr. at 503-04. He determined that Carr was unable to

meet competitive standards for a regular work setting in 24 of

25 mental abilities and aptitudes listed on a worksheet that he

completed. Tr. at 507-10. He noted that Carr “becomes anxious,

at times to the point of panic, when she is exposed to

unfamiliar people or possible evaluation or scrutiny.” Tr. at

13 496. He also extensively critiqued Dr. Burns’ opinions, stating

that Dr. Burns underdiagnosed Carr’s conditions and was overly

optimistic about Carr’s prognosis. Tr. at 501-02. Dr. Wagner

concluded that Carr’s various conditions “render gainful

employment impossible.” Tr. at 503.

The ALJ explained that he considered, but “assigned . . .

little weight” to, Dr. Wagner’s evaluation in determining Carr’s

RFC. See Tr. at 27. The ALJ did not, however, specifically

explain his treatment of Dr. Wagner’s assessment with respect to

social limitations.3 See Tr. at 27; Doc. No. 8-1 at 15.

4. Other Evidence

In addition to the medical opinion evidence described

above, the ALJ considered the following materials in assigning

Carr’s RFC. The ALJ reviewed treatment notes from Carr’s

primary care physician, Dr. Tyler Edwards. Dr. Edwards’ notes

indicated that Carr often failed to take medications prescribed

to treat her anxiety and depression. Tr. at 26. The notes

further indicated, according to the ALJ, that “physical

examinations [of Carr] have demonstrated no objective findings

3 The Commissioner argues that “[t]he ALJ extensively discussed the evidence in the record that he found inconsistent with such severe social restrictions,” and that “[i]t would have been needlessly redundant for the ALJ to have repeated [this evidence] in specifically rejecting Dr. Wagner’s opinion.” Doc. No. 9-1 at 11 n.3. 14 of psychiatric symptoms.” Tr. at 26. The ALJ also referred to

Carr’s work activity between 2005 and 2010, which the ALJ found

“significant [in] that [Carr’s] alleged impairments do not

prevent her from working.” Tr. at 28. The ALJ further noted

that Carr “did not demonstrate or manifest any anxiety or

difficulty concentrating” during her hour-long hearing before

the ALJ.

Finally, the ALJ pointed out that “no treating

physician submitted medical source statements limiting [Carr’s]

ability to perform work activities.”

In assessing a claimant’s residual functional capacity, an

ALJ may not “ignore medical evidence or substitute his own views

for uncontroverted medical opinion.” Nguyen,

.

As a lay person, an ALJ is “not qualified to interpret raw

medical data in functional terms” in the absence of medical

findings or opinions. Id.; Frotten v. Colvin,

, 8.

An ALJ does, however, have the authority to “piece together the

relevant medical facts from the findings and opinions of

multiple physicians,” Evangelista v. Sec’y of Health & Human

Servs.,

(1st Cir. 1987), and may make “common-

sense judgments about functional capacity based on medical

findings,” Gordils v. Sec’y of Health & Human Servs.,

(1st Cir. 1990).

15 Here, the ALJ erred by rejecting all of the relevant

medical opinions and instead basing Carr’s RFC on his own view

of the relevant evidence. See Tr. at 26-29. The three medical

opinions provided that (1) Carr should be limited to work where

she is “essentially working alone,” Tr. at 26, 342; (2) Carr “is

able to work in coordination with others only if such work is a

minimal part of her job description,” Tr. at 90, 100; and (3)

Carr’s various conditions “render gainful employment

impossible,” Tr. at 503. The experts thus unanimously concluded

that Carr should be limited to only occasional interaction with

others, including co-workers. The ALJ, however, assigned these

opinions “only some” or “little” weight because, he concluded,

Carr’s reported ability to interact with others, her prior work

experience, her failure to take prescribed medications, and her

demeanor during an hour-long hearing undermined the experts’

opinions. Tr. at 25-29. Based upon his interpretation of those

factors, the ALJ declined to adopt the limitation recommended by

the experts and instead limited Carr to “only occasional

interaction with the public.” Tr. at 25. Because the ALJ

rejected the only relevant medical opinions and based Carr’s

social limitation on his own view of the record, Carr’s assigned

RFC is not supported by substantial evidence.

16 The Commissioner nonetheless makes three principal

arguments in support of the Carr’s assessed RFC. I address, and

reject, each argument below. First, the Commissioner argues

that the ALJ permissibly pieced together the relevant factual

findings, opinions, and his own observations in assigning Carr’s

RFC. See Doc. No. 9-1 at 7. I disagree. Unquestionably, the

ALJ may “piece together the relevant medical facts from the

findings and opinions of multiple physicians,” Evangelista,

, and may assign different weights to conflicting

opinions, see Roman-Roman v. Comm’r of Soc. Sec.,

(1st Cir. 2004). Moreover, an ALJ may discount an

opinion that is unsupported by, or inconsistent with, record

evidence. See Couture v. Colvin,

. Thus,

the ALJ here did not err by assigning different weight to

different opinions, or by considering those opinions in light of

the record evidence. Rather, he erred by rejecting all of the

expert opinions and instead assigning an RFC based on his own

interpretation of the facts. See Nguyen,

. By

doing so, the ALJ overstepped his qualifications as a lay

person.

Second, relying upon Martel v. U.S. Soc. Sec. Admin.,

, the Commissioner appears to argue that the assigned

social limitation here is a reasonable interpretation of the

17 experts’ opinions. Doc. No. 9-1 at 11. This argument

misconstrues Martel.

In Martel, as in this case, the claimant challenged the

social limitation in his assigned RFC. In Martel, one medical

expert opined that the claimant “is not able to interact

appropriately and communicate effectively with people he is

unfamiliar with,” while another concluded that the claimant

“should avoid work with close contact with strangers.”

. Based on those opinions, I affirmed the ALJ’s

assigned social limitation of “no interaction with the general

public.” Id. at 35, 37. In so concluding, I noted that the

experts’ opinions were “open to interpretation,” and that the

ALJ “properly drew reasonable inferences from the record

evidence in arriving at his decision to limit [the claimant] to

no interaction with the public.” Id. at 37.

Despite their obvious factual similarities, this case is

essentially different from Martel. Martel rests on the

proposition that, where expert opinions are ambiguous, an ALJ

may reasonably interpret those opinions - based on record

evidence - in assigning an RFC. See id. Martel does not mean,

however, that when an ALJ disagrees with all of the relevant

expert opinions, he may simply scrap them and fashion an RFC

that he believes is more fitting. See id.; see also Nguyen, 172

18 F.3d at 35. And, in this case, the ALJ did not merely interpret

ambiguous opinions, but explicitly rejected them. See Tr. at 26

(finding that Dr. Burns’ “assessments that [Carr] should be

limited to work where she is essentially working alone, not

supported by the medical evidence of record”), 27 (assigning Dr.

Wagner’s opinion “little weight,” though not explicitly

addressing social limitations), 28 (stating that Dr. Stenslie’s

proposed social limitation “would be inconsistent with the

medical evidence of record, [Carr’s] activities of daily living,

and her overall social functioning”). Martel therefore does not

save the ALJ’s conclusion.

Finally, the Commissioner argues that a remand is

unnecessary because, even if the ALJ had adopted Dr. Stenslie’s

opinion, that opinion would not prevent Carr from performing

certain jobs. Doc. No. 9-1 at 8 n.2; see Ward v. Comm’r of Soc.

Sec.,

(1st Cir. 2000) (explaining that “a

remand is not essential if it will amount to no more than an

empty exercise”). More specifically, relying on the Dictionary

of Occupational Titles, the Commissioner contends that

“interaction with people [is] ‘not significant’ in the jobs the

ALJ found [Carr] could perform.” Doc. No. 9-1 at 8 n.2.

A full and fair reading of the record forecloses the

Commissioner’s argument. A vocational expert (“VE”) testified

19 at Carr’s hearing before the ALJ. Tr. at 77-81. At that

hearing, the ALJ asked the VE a series of hypothetical questions

regarding whether someone of approximately Carr’s age,

education, and work experience could perform work in the

national economy. The ALJ initially asked whether an individual

limited to “only occasional interaction with the public” could

perform jobs that exist in significant numbers. Tr. at 77-78.

The VE opined that such jobs – “hand packager,” “laundry

worker,” “hospital cleaner” – did exist. Tr. at 78. The ALJ

then shifted the hypothetical, and asked whether a significant

number of jobs existed for someone limited to “only occasional

interaction with co-workers.” Tr. at 79 (emphasis added). To

this, the VE replied that he “[didn’t] know of any.” Tr. at 79.

The vocational expert thus opined that an RFC limiting Carr

to only occasional interaction with others, including co-

workers, would essentially bar her from performing jobs that

exist in significant numbers in the national economy. The

Commissioner does not address this opinion in her argument, let

alone explain why I should disregard it here. I decline to do

so. See Roman-Roman,

.

20 IV. CONCLUSION

For the foregoing reasons, I grant in part and deny in part

the Commissioner’s motion to affirm (Doc. No. 9) and grant in

part and deny in part Carr’s motion to reverse (Doc. No. 8).

Pursuant to sentence four of

(g), I remand the

case to the Social Security Administration for further

proceedings consistent with this Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge December 8, 2015

cc: Laurie Smith Young, Esq. D. Lance Tillinghast, Esq. Robert Rabuck, Esq.

21